On Monday, March 4, the U.S. Supreme Court unanimously declared that a work must be registered with the U.S. Copyright office prior to the copyright owner bringing an infringement lawsuit.

While registration is not required for valid copyright ownership, Section 411(a) provides that a work must be registered prior to bringing a copyright infringement lawsuit. Notably, even if the application is ultimately refused and the registration is denied, the applicant still may bring a civil action.

Previously, the circuit courts had been split on what point was considered “registered.” This split took the form of two basic approaches: the registration approach and the application approach. The registration approach is the textualist “plain language” interpretation of the statute – the registration is not formalized until the application is accepted and the registration certificate is awarded. Meanwhile, the application approach finds the statute’s definition of “registration” ambiguous, as some sections lay out no prerequisites to registration other than the completed application.

In the unanimous opinion, Justice Ruth Bader Ginsburg gave credence to the registration approach, finding that the copyright office must actually take action on the registration as opposed to the paperwork simply being filed by the owner. Regarding concerns that this added delay would hurt copyright originators, Justice Ginsburg pointed out that “[that] fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the register’s decision.”

Of note, Justice Ginsburg also penned that the statutory scheme has failed to work as congress likely envisioned in its drafting, as the registration processing times have continued to increase since the one or two weeks it took back in 1956. However, this point was essentially deferred back to the legislative branch, as Justice Ginsburg noted that “[u]nfortunate as the current administrative lag may be, that factor does not allow us to revise Section 411(a)’s congressionally composed text.”

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